Silvia Perez-Anaya v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2022
• Docket: 19-73172
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SILVIA PEREZ-ANAYA, No. 19-73172

Petitioner, Agency No. A206-501-329

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 14, 2022** San Francisco, California

Before: BEA, CHRISTEN, and BRESS, Circuit Judges.

Silvia Perez-Anaya, a citizen of Mexico, seeks review of a Board of

Immigration Appeals (BIA) decision dismissing her appeal of an Immigration Judge

(IJ) order denying her applications for withholding of removal, cancellation of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). In light of the Court’s previous order dispensing with oral argument, Dkt. No. 32, the joint motion to submit the case on the briefs, Dkt. No. 33, is denied as moot. removal, and relief under the Convention Against Torture (CAT). We review for

substantial evidence and may grant relief only if the facts compel a contrary

conclusion. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). When the

BIA adopts the decision of the IJ as its final decision, we consider the IJ’s decision

as well. Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011). We have jurisdiction

under 8 U.S.C. § 1252. We deny the petition in part and dismiss in part.

1. Substantial evidence supports the denial of withholding of removal.

“To qualify for withholding of removal, an alien must demonstrate that it is more

likely than not that he would be subject to persecution on one of the specified

protected grounds.” Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011)

(internal quotation marks and alteration omitted); see 8 U.S.C. § 1231(b)(3)(A).

Perez-Anaya claims membership in two particular social groups: (1) her family, and

(2) immediate relatives of Mexican government officials.

Assuming, as the IJ did, that these groups are cognizable, substantial evidence

supports the agency’s determination that Perez-Anaya did not show she would be

persecuted because of her membership in these groups. Perez-Anaya testified to

criminal incidents involving her brothers in Mexico, but “random” criminal acts “do

not amount to persecution.” Gormley v. Ashcroft, 364 F.3d 1172, 1180 (9th Cir.

2004). In addition, Perez-Anaya was never personally threatened or harmed when

she lived in Mexico, and some of her family members continue to live in Mexico

2 unharmed. “The ongoing safety of family members in the petitioner’s native

country undermines a reasonable fear of future persecution.” Sharma v. Garland, 9

F.4th 1052, 1066 (9th Cir. 2021). Thus, substantial evidence supports the denial of

withholding of removal.

2. Substantial evidence also supports the denial of CAT relief. Perez-

Anaya has not demonstrated that “she will more likely than not be tortured with the

consent or acquiescence of a public official if removed to her native country.”

Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). While Perez-Anaya

points to the experiences of her brothers in Mexico, she does not explain how those

experiences compel the conclusion that she would be tortured if returned to Mexico.

3. Cancellation of removal is available for non-citizens who meet certain

criteria if “removal would result in exceptional and extremely unusual hardship to

the alien’s spouse, parent, or child, who is a citizen of the United States or an alien

lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(1)(D). But we lack

jurisdiction over challenges to the IJ’s “subjective, discretionary determination that

a petitioner did not demonstrate exceptional and extremely unusual hardship,” and

can only review claims presenting a “colorable” legal issue. De Mercado v.

Mukasey, 566 F.3d 810, 815–16 (9th Cir. 2009) (internal quotation marks and

alteration omitted).

To the extent Perez-Anaya asks us to reevaluate the IJ’s hardship

3 determination based on her husband’s health condition, we lack jurisdiction to

consider that argument. And Perez-Anaya does not point to any error of law in the

agency’s decision.

PETITION DENIED IN PART AND DISMISSED IN PART.